COMPOSICIÓN DE LA MEZCLA 31

‘grow out’ of crime before anything really serious happened.

Arising out of this belief system emerged two main modes of intervention,

“ ...(i) diversion from the formal criminal justice system through the development o f cautioning and (ii), the targeted provision o f community-based treatment programmes operating largely with an alternative-to-custody aim and developed

through the use o f supervision orders. ”

(Haines & Drakeford, 1998: 33)

The use of a ‘systems-management’ approach (Tutt & Giller, 1987) was instrumental in ensuring that petty and first-time offenders were diverted from the stigmatising effects of the criminal justice system whilst those who were more serious or persistent ‘offenders’, as far as possible, were dealt with by way of supervised programmes in the community. The application of principles of proportionality (later and very briefly embodied rather schematically in the Criminal Justice Act 1991) to the sentencing process helped protect young people from being sentenced on the basis of their backgrounds. This is not to suggest that practitioners were necessarily unaware of the material context and personal circumstances in which the law was broken (Asquith, 1983). It is unlikely that

practitioners allowed themselves to be reduced to the role of mere actuaries of risk and offence gravity. This is not to say that such considerations did not enter the equation when Social Inquiry Report (SIR) recommendations were being prepared. Moreover, the development of these assessment practices during this period perhaps smoothed the way for the arrival of actuarialism at the end of the 1980’s.

It was, indeed, at the SIR stage that practitioners had the best opportunity to influence magistrates and judges. The Criminal Justice Act 1982 required courts to make greater use of SIR’s in the sentencing process. One common complaint about the minimalist reports beginning to appear around this time was that authors were decontextualising offending behaviour by failing to give fully rounded accounts of the young person’s social and personal background. There is legitimacy in this criticism. However, there were sound reasons for departing from the ‘personal history’ genre of report writing. SIR authors could apply the principle of minimum sufficient intervention to their conclusions

(thereby framing the desired sentencing outcome). This judgement would determine the extent of the personal background and social information contained in the main body of the Report. Authors could thus become adept at providing just enough background information on the young person in order to achieve the desired sentencing outcome. Accumulated experience showed that providing too much information (particularly when this involved a litany of personal and social problems) could work against the interests of the defendant and result in higher tariff sentences. So, for example, the child from a lone parent family on a social housing estate was considered at great risk of receiving a

Supervision Order (with all the attendant risks of breach for failing to attend future appointments) for a straightforward property or criminal damage offence. If authors mentioned all her/his problems - with girls being potentially placed at particular risk in the welfare spotlight (May 1977; Shacklady Smith, 1978; Casbum, 1979; and Harris & Webb, 1987) - magistrates might be genuinely puzzled if the SIR author concluded that there was no need for the court to provide help. Many practitioners believed that the principle of minimum sufficient intervention should be applied even to those with

extreme welfare needs. This was because the criminal justice system is capable of posing potentially enormous risks to children in need. In effect, a young person’s problems might be multiplied by the system’s propensity to amplify and stigmatise personal difficulties. Additionally, the sanctions for non-compliance or failure to respond to ‘treatment’ could ultimately be draconian. As Drakeford has observed.

" ...welfare cannot effectively be delivered through the medium o f criminal justice sanctions. ”

(Drakeford, 2001: 43)

It was in the light of this more self-reflexive risk assessment (“what risk does the agency, system and/or practitioner pose to the young person?”) that, alongside the principle of minimum sufficient intervention, there developed the principle of ‘system integrity maintenance’. In other words, it was the business of other welfare agencies (Social Services Department’s Children’s Services, Housing Departments, the Health Service, Education Welfare, etc.) to provide the appropriate support. Thus, it became common practice amongst many youth justice practitioners at this time to keep ‘high needs’ young

people as low down the sentencing tariff as possible whilst simultaneously referring them to other relevant agencies. In some cases - though this was probably a minority -

voluntary work was undertaken with such people outside the statutory framework of formal supervision.

The great success o f the justice movement was that it achieved a dramatic reduction in the juvenile custodial population across the ensuing decade. Between 1981 and 1989 the number of juveniles imprisoned fell from 7,700 to 1,900 (Pitts, 2001: 179). This success was attributable to both changes in sentencing culture and re-routing young people away from the courts to multi-agency diversion panels. This achievement can be presented as a tangible triumph of not only ‘justice over punishment’, but of ‘welfare over punishment’ (for how else can the diversion from a potentially brutalising and highly criminogenic institution be described?). There was, however, a downside.

The period in question witnessed an increase in child poverty, the collapse of the youth labour market and the erosion of such traditional welfare supports as housing and income maintenance (Furlong & Cartmel, 1997). In Social Services Departments, moreover, there was a trend away from supportive, preventive and therapeutic work with children and families (including work with older children and ‘adolescents’) and a concentration on acute child protection work with pre-school infants. This resulted in many poor young people in the 1980’s effectively losing their entitlement to social work and other relevant welfare services (Haines, 1997).

Against this background it is easy to see how a young person diverted from the criminal justice system, or ‘down-tariffed’ with a Conditional Discharge and sent on her/his way,

might feel neglected rather than helped. At an ideological level, moreover, the virtual disappearance of the ‘social’ dimension from many Social Inquiry Reports (later

reinvented as Pre-Sentence Reports by the Criminal Justice Act 1991) helped those on the political Right to de-couple social and environmental issues from individual ‘offending behaviour’ (Drakeford & Vanstone, 1996). Whilst re-focusing on the individual offender may have helped to ensure the observance of ‘legal rights’ and ‘due process’, it took only

a small step to the Right to privilege the principle o f criminal responsibility. Indeed, one of Hudson’s (Hudson, 1987) key criticisms of the universalist model of justice was that it assumed the existence of a notional universal citizen who, along with her/his fellows, enjoyed equal access to economic resources and social capital. Given the stubbornly enduring nature of social inequalities in Britain, she has argued more recently in favour of a jurisprudence that brings together a,

“ ...discourse o f difference, by advocating a relational approach to rights. ” (Hudson, 2001: 167).

As Stenson & Sullivan (2001) explain:

“This would shift focus away from universalist models ofjustice that downplay individual and group differences to one that recognises the crucial differences o f class, race and gender in understanding both crime and appropriate levels o f punishment. ”

(Stenson & Sullivan, 2001: 8).

At the time of writing, however, the realisation of this philosophical approach to youth justice appears to be quite remote.

2.4: Youth. Crime and Public Care: some preliminary considerations

Before proceeding to a critical assessment of New Labour’s youth justice policy in

Chapter 3, it is worth pausing to consider some important general issues that are pertinent to the main themes of the dissertation. An attempt is made to locate the relationship between young people, crime and public care within a wider context.

As has been already suggested, young people are routinely cast as the ‘usual suspects’ in most popular discourses of crime. It is instructive, therefore, to consider the empirical relationship between young people and serious crime. Very often the problems

experienced by young people are merely appended to an agenda dominated by concerns about public order and safety. On one level this is understandable. In poor

neighbourhoods, particularly, young people's social exclusion is visible on the streets. Inevitably, young people are associated with crime, minor misdemeanours and low level ‘public nuisance’ (more commonly and evocatively referred to these days as anti-social behaviour’ or ‘disorder’). Given that only one in ten offences recorded by the police results in a caution or conviction, one cannot know with exact precision the profile of those who commit crimes in our communities (Maguire, 2002). On the basis of adjudicated offenders we do know, however, that around 80% are male and 41% are below the age of 21 years (Maguire, 2002: 362). Moreover, at least a quarter of crime is committed by young people aged 10-17 years (Newbum, 2002b: 540). It is important to make the point, though, that most youth crime is confined to less serious offences:

property offences (Theft, Handling Stolen Goods, Burglary, etc.) outnumbering crimes of violence. When offences of violence are committed they also tend to be at the less

serious end of the scale. As Brown (1998: 3) observes.

“Mid-life is portrayed as a time o f maximum respectability, maximum productivity: the age o f the solid, respectable, law abiding citizen. Crime is

therefore portrayed as a problem fo r those in mid-life, rather than the middle- aged being portrayed as a problem fo r society. Rarely do we imagine middle- aged people as corporate or white-collar criminals, embezzlers, or orchestrators o f sleaze politics. The fact that most serious crimes o f theft and violence are perpetrated by this age group...is concealed by our cultural notions o f

respectable middle age and our concomitant fear and suspicion o f the young. ”

Self-report studies, though, reveal that the actual level of offending amongst young people is considerably higher than that recorded in official statistics (Belson, 1975; Rutter & Giller, 1983; Anderson et al, 1994; Graham & Bowling, 1995; Flood-Page et al, 2000). It should be noted, though, that such surveys usually focus on populations that are

generally regarded as ‘at risk’ or ‘delinquent’. Consequently the real extent and pattern of offending among older people is less clear.

Interestingly, it is worth noting that some self-report surveys suggest that there is actually no significant social class difference in terms of youth offending rates, with middle class young people being just as likely to commit offences as their working class counterparts (Anderson et al, 1994; Graham & Bowling, 1995). One survey (British Household Panel,

2001) has even indicated that young people from higher income homes are slightly more likely to commit offences. Such surveys highlight the socially constructed nature of offending and raise questions about who is most likely to be detected, arrested and prosecuted. The surveys also undermine those methodologies that attempt to construct ‘risk factors’ on the basis of a population of adjudicated offenders.

The limitations of self-report questionnaires need not be rehearsed fully here.

Nevertheless, it is important to acknowledge the need to inspect much more closely the contexts within which young people tend to commit offences. Rather than pathologising them on an individual basis, or narrowing the aetiological focus and reducing their lives to de-contextualised clusters of ‘risk factors’, it is important to understand the different settings within which offending is likely to occur. Whilst work undertaken on the influences of peer groups and gang cultures is important, it is equally essential that we analyse those contexts that have been constructed and dominated by adults. Our focus should not merely be on young people themselves, but also on those adults in authority who have a duty of care. What do adults actually do to young people? Do detailed ‘risk assessments’ include a serious assessment of the risks posed by adults to young people?

Young people are also, of course, victims of crime. They are actually more vulnerable to all forms of violent crime (apart from spouse abuse) (Tuck, 1989; Mattinson, 2001). According to the British Crime Surveys, for example, 19% of males aged 20-24 were assaulted at least once over a twelve-month period. This could, in part, be related to a lifestyle associated with alcohol consumption in large groups in public places (Levi & Maguire, 2002: 808). The fourth sweep of the British Crime Survey, however, focused on those aged 12-15 years old. Although the data are by now rather old, it is interesting to note that in this age group one third reported being assaulted; a quarter had been victims of theft; and one in twenty had been robbed (Aye Maung, 1995). The latter offence category has risen more recently, partly because of the proliferation of mobile phones amongst teenagers - a fashionable accessory and ‘soft target’ (Home Office Website).

As has been mentioned previously, the range of settings in which young people are

victimised should also be borne in mind. Places in which adults owe young people a duty of care are often sites where they are most vulnerable. CCTV cannot protect young people from domestic violence within the family. Such violence is, moreover, more commonly analysed in the social work discourse of ‘child abuse’ rather than in

criminological terms (Rees & Stein, 1999). Likewise, schools - which are charged with the responsibility of acting in loco parentis - are often places of danger and fear. A Youth Justice Board commissioned survey (Youth Justice Board, 2002) found that 35% of children had been assaulted and 45% threatened with violence whilst on school premises.

As has already been mentioned, the public care system has been exposed as a site of danger for young people: a series of scandals in the 1980s and 1990s highlighted cases of physical, sexual and institutional abuse taking place in the public care system (Utting,

1997; Butler & Drakeford, 2003) Given that those with a background in public care are over-represented in the criminal justice system (Utting 1997), young offenders’

emotional vulnerability and experience of victimisation should not be overlooked. Indeed, the high proportion of young ‘offenders’ with a background in public care (plus those defined as being ‘Children in Need’ under the terms of Section 17 of the Children Act 1989) has important implications for youth justice practitioners. Mainstream Anger Management Programmes, for example, may not be suitable for those young people who have experienced violence, sexual abuse or neglect. Such systemic indifference may, in itself, constitute a form of abuse.

That young people are placed in residential units where they are at risk of harassment, bullying and assault by peers has been vividly documented (Barter et al, 2004). The problems associated with behaviour management in such residential units are complex and challenging. It is not, for example, always possible to draw clear distinctions between victims and perpetrators. Leaving aside the frustrating post hoc inquiries conducted by staff in which they try to determine ‘who hit whom first’, there are also wider considerations concerning young people’s own personal histories of abuse and

neglect. Having identified the principal perpetrators after an incident, the practitioner is still left with the difficult decision about what to do with him or her. The perpetrator, in common with the victim, is likely to have complex personal, family and social problems with which to deal. In the circumstances, whose interests are best served by recourse to the criminal justice system? Despite the apparent futility and potential damage of such a course of action, it will be revealed in Chapter 5 of this dissertation that this is precisely what happens to some young people. Many young people arrive in court because of incidents that occur in residential units managed by Social Services Departments. Seemingly, the hothouse dynamics of some residential units precipitate challenging behaviour with the result that young people are charged with such offences as Criminal Damage, Threatening Behaviour and Assault. Some of these young people, moreover, find their way into custody. The safety o f young people in custodial institutions,

meanwhile, is far from assured (Goldson, 2002a). This is a subject that will be revisited in Chapter 3.

For the most part, the nature of the public care system should not be characterised as being abusive or violent. The betrayals tend to be less dramatic. In their cumulative effect, though, the long-term effects are often no less profound. The shortcomings of the public care system and the poor outcomes for care leavers are well documented and, quite rightly, the subject of ongoing scrutiny. Reactive practice, multiple placements, planning blight and a general sense of drift are just some of the explanations advanced (Hayden et al, 1999; Jackson & Thomas, 2000; and Jackson, 2000). That many young people have been left ill equipped to navigate their passage safely into adult life is beyond dispute. Whilst the public care system is clearly at serious fault, culpability is not confined to Social Services. Other agencies and systems must also take a large measure of responsibility. How the criminal justice system has responded to one group of young people from public care is, of course, the subject of this dissertation.

Despite many being victims of crime, neglect and abuse, the dominant construction of young people remains that of the delinquent perpetrator. As will be seen in the next chapter, the nature o f the new youth justice system reflects this construction. This is not

to suggest that welfare needs are ignored by the youth justice system. Indeed under the present arrangements, when welfare needs are coterminous with criminogenic risk

factors, there is very often active engagement with children’s needs. As has already been suggested, however, there are intrinsic risks associated with the criminalisation of social welfare policies. Some o f these pitfalls are highlighted later in this dissertation.

2.5: Conclusion:

What hopefully emerges from the foregoing analysis is that the distinction between welfare and punishment has long been rather blurred. The conflation of the ‘deprived child’ with the ‘depraved child’ means that there exists a contested space at the heart of the youth justice system. Whilst laying the foundations for the modem youth justice system through the establishment of the youth court and the formal enhancement of welfare principles, the 1908 Children Act also eroded the boundaries between the old Industrial Schools (for neglected children) and the Reformatories (for young offenders). In doing this, it facilitated movement between these two populations (Stewart, 1995). Thus, there developed a more ambiguous public and professional reaction to young people in the care system. This ambiguity was much later exacerbated by the 1969 Children and Young Persons Act which gave magistrates the power to effectively ‘sentence’ children to Care Orders. As Hayden et al (1998) observe:

“In a direct, practical sense this was an attempt to funnel young offenders away from the juvenile justice system and into the care system. The debate on the

wisdom o f this approach continued throughout the subsequent decade.... What was certainly true was that perceptions o f the care system began to change as the nature o f its clientele changed. No longer was it an avenue fo r public sympathy fo r ‘neglected ’ children. As child care, particularly residential care, began to

house relatively older children (fostering, adoption and preventive work catering fo r most o f the others) and more o f those who had been in trouble with the law,

the nature o f the stigma attaching to those in care changed. Children in care